Excerpt: - .....on the facts and in the circumstances of the case, the tribunal was right in holding that the service of notice under section 22(2) of the indian income-tax act, 1922, was invalid in law '2. a notice under section 22(2) was issued to the assessee, but on the tender being refused, the notice was affixed through the inspector in the presence of witnesses. when the assessee did not file a return, a notice under section 23(4) was issued. the assessee appeared and took certain adjournments but ultimately did not turn up and an ex-parte assessment was made under section 23(4) of the indian income-tax act, 1922. the assessee filed an appeal and contended that as the notice under section 22(2) was not issued in accordance with the provisions of order 5 of the code of civil procedure, the.....

Judgment:

H. Swarup, J.

1. The question referred to us under Section 66(1) of the Income-tax Act by the Income-tax Appellate Tribunal is :

' Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the service of notice under Section 22(2) of the Indian Income-tax Act, 1922, was invalid in law '

2. A notice under Section 22(2) was issued to the assessee, but on the tender being refused, the notice was affixed through the inspector in the presence of witnesses. When the assessee did not file a return, a notice under Section 23(4) was issued. The assessee appeared and took certain adjournments but ultimately did not turn up and an ex-parte assessment was made under Section 23(4) of the Indian Income-tax Act, 1922. The assessee filed an appeal and contended that as the notice under Section 22(2) was not issued in accordance with the provisions of Order 5 of the Code of Civil Procedure, the proceedings were void ab initio. The appeal was allowed and the department's appeal before the Tribunal was dismissed on the finding that there was non-compliance of the provisions of Rule 19 of Order 5, Civil Procedure Code, inasmuch as the summons returned under Rule 17 had not been verified by an affidavit of the serving officer and the serving officer had not been examined on oath by the Income-tax Officer,On this finding the Tribunal held that the service of the notice under Section 22(2) was invalid and upheld the annulment of the assessment.

3. Learned counsel for the Commissioner of Income-tax has contended that as before the Tribunal the assessee's case was that there was non-compliance under Rule 20 of Order 5, Civil Procedure Code, the Tribunal erred in holding the notice invalid by reason of non-compliance of provisions of Rule 19 of Order 5. He has further contended that the provisions of Rule 19 of Order 5 are not mandatory and the non-examination of the serving officer on oath was only an irregularity which did not invalidate service of the notice. He has also urged that in the circumstances of the case the assessment order could not be annulled as the assessee did not challenge the validity of the notice under Section 22(4) and had himself appeared to participate in the proceedings,

4. It is not open to us in this reference to consider the question about the validity of the assessment order as no such question has been referred to us. Hence it is also not open to us to go into the question about the effect of the appearance of the assessee before the Income-tax Officer in compliance of the notice under Section 22(4) of the Income-tax Act. Although the assessee had contended before the Tribunal that there was non-compliance of Rule 20 of Order 5, Civil Procedure Code, the assessee did not accept that there was any service made under Rule 17 of Order 5. The case of the department was that service had been effected under Rule 17 of Order 5. The Tribunal was, therefore, within its jurisdiction in considering the case of the department as to whether the service of the notice under Section 22(2) was valid even if it was taken to have been effected under Rule 17 of Order 5. Taking the entire provisions of the Code of Civil Procedure, including the provisions of Rule 13 of Order 9, of the Code as amended by this court, it may be that in a suit where an ex parte decree is passed the effect of non-compliance of the provisions of Rule 19 of Order 5 may not be sufficient for setting aside the decree, but as the question referred to us is only about the validity of the service of the notice we have to see if the provisions of Rule 19 of Order 5, Civil Procedure Code, are mandatory. This rule uses both the words ' shall ' and ' may '. In cases where the return under Rule 17 is not verified by an affidavit of the serving officer, the rule says that the court shall examine the serving officer on oath. It is only where the affidavit of the serving officer has been filed that the rule gives a discretion to the court to examine or not the serving officer on oath. In our opinion, where the summons returned under Rule 17 has not been verified by the serving officer, it is mandatory on the authority to examine the officer on oath and if he does not do so it would be non-compliance of the provisions of Rule 19 and will make the service of the notice invalid in law. In the present case, the Tribunal has found thatthe process-server did not verify the return by an affidavit and that he was not examined on oath by the Income-tax Officer. On these findings, the view taken by the Tribunal, in our opinion, is the correct view.

5. We accordingly answer the question referred to us in the affirmative. The, assessee will be entitled to his costs which we assess at Rs. 200. Counsel's fee is assessed at the same figure.